Washington, DC – On June 13, the NLRB issued its decision in The Atlanta Opera, which defies the explicit directions of the US Court of Appeals for the D.C. Circuit and narrows opportunities for independent contractors and self-employed individuals.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“In today’s decision, the Board reinstates a test for determining employment status that was explicitly rejected by the US Court of Appeals for the DC Circuit. The Board’s decision will force workers into work arrangements they do not want – all for the sake of giving unions new potential members. With this decision, the Board has chosen to ignore the concerns raised by the employer and freelance communities, and its actions threaten to destabilize a number of industries and deprive many independent contractors of the flexible work methods and entrepreneurial opportunities they value.
“The Board’s actions are all part of the Biden administration’s war against small businesses and entrepreneurs and will invite confusion and litigation. As we explained in our amicus brief, the NLRB should continue to follow the standard set in SuperShuttle DFW and emphasize the significance of entrepreneurial opportunity when considering a worker’s proper classification.”
Washington, DC – On September 12, CDW sent a letter to the House Education and Labor Committee expressing serious concerns with the Protecting the Right to Organize (PRO) Act and recent activity and policies pursued by the National Labor Relations Board (NLRB) and its General Counsel, Jennifer Abruzzo.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Economic analyses have proven that the PRO Act would have devastating consequences for the economy. It would cause economic upheaval at a time when our economy is still struggling with recovering from the COVID-19 pandemic. Inflation is rising, fears of a recession are top of mind, supply chains continue to lag behind demand, and workforce shortages are limiting economic growth. Particularly concerning at this moment in time is the PRO Act’s provision removing the 70-year ban on secondary strikes. As seen by the recently threatened rail strike, this provision alone could shut down the country’s supply chain. Surveys have also shown that the PRO Act is not supported by the public. Congress should abandon the PRO Act and work towards helping the economy get back on track.
“At the same time as Congress pursues this misguided legislation, the NLRB and General Counsel Abruzzo are attempting to rewrite labor law to force unions on workers whether they want one or not. They are trying to eliminate secret ballots in union representation elections and wipe out employers’ First Amendment rights during union organizing campaigns. They are putting employers in an impossible position by forcing them to tolerate discriminatory behavior in the workplace despite the clear violation of federal anti-discrimination laws that such tolerance would require. The Board is pursuing a new joint-employer standard that would destroy small and local businesses. This NLRB and General Counsel Abruzzo are pursuing radical policies without any consideration for the damaging effects they will cause for the regulated community.
“And now, there are allegations that NLRB staff are colluding with labor unions in representation elections and unfair labor practices cases against specific employers. This is simply beyond the pale. The NLRB is supposed to be a neutral arbiter of the law, and instead, staffers are tilting the balance in favor of their preferred side.
“Congress should demand the NLRB and General Counsel Abruzzo stop rewriting labor law to impose their own beliefs on the nation’s economy. The economy simply cannot right itself while simultaneously struggling to keep up with the never-ending radicalization of labor policy.”
On February 10, 2022, CDW filed an amicus brief in the NLRB’s Atlanta Opera case, in which the Board is considering changing its standard to determine whether a worker is an employee or an independent contractor. Our brief is one of 39 briefs filed in the case, highlighting the importance of (and controversy surrounding) this issue.
In our brief, we highlighted the Board’s two failed attempts to rewrite the standard for determining independent contractor status under the National Labor Relations Act and criticize the Board for “proposing again to disregard judicial authority by reinstating the Board’s discredited FedEx standard, or some version of it.”
We call on the Board to keep in place its 2019 SuperShuttle independent contractor standard, which “correctly explained how the Board’s prior rulings in FedEx I and II ‘fundamentally shifted the independent contractor analysis, for implicit policy-based reasons, to one of economic realities…’, thereby violating the Act and multiple court rulings.” We caution the Board against overruling SuperShuttle, which we explain “would violate the Act and binding judicial precedent, inevitably subjecting the Board to overruling by the courts, and perhaps even judicial sanctions… destabilizing a number of industries represented by the amici, and depriving many independent contractors of their preferred flexible work methods and entrepreneurial opportunities.”
Joining CDW on its brief were the American Association of Advertising Agencies, American Bakers Association, American Trucking Associations, Associated Builders and Contractors, HR Policy Association, Independent Bakers Association, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, and Nation Retail Federation.
Washington, D.C. – On Tuesday, June 11, CDW submitted a letter to all members of the House of Representatives signed by 147 organizations from around the country opposing H.R. 2474, the so-called Protecting the Right to Organize (PRO) Act. As CDW’s Chair Kristen Swearingen explained, “H.R. 2474 attacks the gig economy and franchise business model, both of which have provided new and entrepreneurial opportunities to a diverse group of Americans throughout our country. The bill would also infringe on employees’ rights to privacy and association, destabilize labor management relations, deprive small businesses of access to confidential legal advice, and strip all workers of Right-to-Work protections. H.R. 2474 is in essence a heavy-handed attempt to increase union membership and union revenue streams without regard to American workers, small businesses, entrepreneurs or economy growth. Members of Congress should not cave to special interests and should reject this bill quickly and completely.”
Today, the Washington Examiner published an op-ed from Coalition for a Democratic Workplace chair Kristen Swearingen York titled “Stealing workers’ secret ballots: A ‘card-check’ sequel that’s worse than the original,” which reads:
Summer is the season for bad sequels. This time, it’s a handful of U.S. lawmakers — led by Sens. Bernie Sanders, I-Vt., and Elizabeth Warren, D-Mass., kowtowing to union bosses ahead of the 2020 election by trying to revive the old, audience-panned “card check” bill from last decade, with a host of new villainous additions.
Those unfortunate enough to recall the original 2005 release of the deceptively named “Employee Free Choice Act” can’t forget its main antagonist — “card check” — a provision that would strip workers’ right to vote privately on whether to unionize their workplace. Opinion polls consistently showed that employees, including those in union households, routinely rejected this affront to workplace democracy. EFCA went beyond killing voting rights, however, with a provision that would have given unelected, unqualified, and unaccountable third parties plenary power over private contracts via “binding interest arbitration.”
It didn’t work, fortunately. Despite aggressive union lobbying and Democratic control of the White House and both chambers of Congress, EFCA was unpopular and had to be abandoned.
Fast forward to the present and Sanders, Warren, and likely 2020 presidential candidates Sens. Cory Booker, D-N.J., and Kirsten Gillibrand, D-N.Y., have introduced the cynically mislabeled “Workplace Democracy Act.” This is just more than just a devious effort to revive card check and binding interest arbitration. It also includes provisions to strike right-to-work legal protections for employees in 28 states, curb opportunities for people to work independently through gig economy platforms or contractor roles, and codify the National Labor Relations Board’s controversial joint employment standard that continues to threaten our nation’s small and local businesses.
If these points aren’t concerning enough, the bill would also interfere with attorney-client confidentiality and make it harder for businesses, and particularly small businesses, to secure legal advice on complex labor law matters.
Finally, it would strip away “secondary boycott” protections, which prevent unions using their exemptions from antitrust laws and immunity from some state laws from targeting business for anti-competitive reasons and purposes other than organizing.
While this all may just seem like a “Fantasia” for union lobbyists, the threat is real. Organized labor almost convinced Congress to pass EFCA in 2010. And if we learned anything from the eight years of anti-business decisions by the Obama-era National Labor Relations Board, bad labor policy does nothing to promote robust job growth nor to increase wages.
It is conventional wisdom that a Democratic presidential candidate cannot emerge as the party’s nominee without extensive support from labor unions. And union officials have made signing onto the Workplace Democracy Act the ante to be considered for labor’s war chest that still holds hundreds of millions of dollars.
Nonetheless, supporters have remained fairly quiet about the bill. It’s not surprising, considering the reception the public gave it last time around.
The media outreach is part of a six-figure, ongoing campaign by CDW to warn of this “Workplace Democracy Attack.”
FOR RELEASE: June 20, 2018
National Coalition Warns Of Sanders and Warren’s “Workplace Democracy Attack”
Coalition for a Democratic Workplace Calls Out Card Check Sequel
Washington, D.C. — Today, the Coalition for a Democratic Workplace (CDW) launched a multi-prong educational campaign to push back against the so-called “Workplace Democracy Act”—an unwise, unfair, anti-democratic bill that revives the failed “card check” scheme to eliminate secret ballot elections.
The initial six figure launch includes a new website and a full-page ad in USA Today warning of the “Cracked Vision for 2020” co-sponsored by Sens. Bernie Sanders (D-VT), Elizabeth Warren (D-MA), Cory Booker (D-NJ), and Kirsten Gillibrand (D-NY), all of whom would need union support if they seek the 2020 Democratic nomination. The ad warns that the card check sequel “is worse than the first.”
Areas of distribution will include Washington, D.C., Burlington, Vermont, and Boston, Massachusetts to ensure that the staffs and electorates for Sen. Bernie Sanders and Elizabeth Warren are alerted to this direct attack on workplace democracy.
CDW chair Kristen Swearingen York said, “In anticipation of the 2020 elections, unions’ Washington lobbyists are up to their old tricks, trying to buy influence and pushing changes that would allow them to steamroll over the rights of workers, small and local businesses, entrepreneurs and the gig economy all in the name of making it easier to unionize.”
She continued, “It’s was hard to fathom legislation worse than the card check bill that went down in flames less than a decade ago, until we saw this rotten sequel. We are disappointed that four senators and possible presidential contenders are so out of touch with America that they would support a bill that obviously inflicts substantial harm on workers, small businesses, entrepreneurs, and job creators. Our goal is to ensure there is enough visibility on this issue that moderate, sensible elected leaders across the country will oppose this Workplace Democracy Attack.”
The Coalition today also sent a letter to legislators co-signed by more than 125 national and local organizations opposing the bill. The letter can be found here.
The campaign also launched WorkplaceDemocracyAttack.com, where more information can be found on the details of the cynically misnamed “Workplace Democracy Act.”
The Coalition for a Democratic Workplace represents 500 national and local organizations, associations, non-profits, and employers. It worked extensively to defeat card check legislation from 2005 to 2010 and has successfully litigated against anti-democratic, anti-employer, and anti-employee legislation and regulation.